Stran Steel Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Steelworkers of America, AFLCIO (Stran Steel Corporation) and Bernard G. Frye. Case 25- CB-3024 November 20, 1978 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On August 22, 1978, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and briefs in support thereof and in answer to the General Counsel's ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at Terre Haute, Indiana, on January 19 and 20, 1978, pursuant to a charge filed on May 27, 1977, by Bernard G. Frye, an individual, and a complaint issued on September 28, 1977. The complaint, which was amended at the hearing, alleg- es that the United Steelworkers of America, AFL-CIO (herein referred to as the Respondent), violated Section 8(b)(l)(A) of the National Labor Relations Act, as amended (herein referred to as the Act), by causing inter- nal union charges to be filed against Bernard Frye and having him brought to trial before Local No. 3489. United Steelworkers of America, AFL-CIO-CLC (herein referred to as the Local); by its International commission finding Frye guilty of intraunion charges and recommending his suspension from holding office in any affiliated local of the Respondent for 3 years; and by its International executive board appeal panel and its International executive board approving the findings and recommendations of the Inter- national commission suspending Frye from holding office in any affiliated local of the Respondent for 3 years be- cause Frye engaged in protected concerted activity under the Act and under the Labor-Management Reporting and Disclosure Act, including running for union office and supporting various candidates in their campaigns for union office in opposition to incumbent union officials, perform- ing the duties and responsibilities of an officer of the local by warning other union members of their potential loss of employee status under the contract, pursuing procedures under the Labor-Management Reporting and Disclosure Act to challenge certain of Respondent's conduct and constitutional provisions, and because the Respondent be- lieved Frye had done so or would do so. The Respondent, in its answer dated October 3, 1977, denies having violated the Act and further asserts as a defense that the National Labor Relations Board has no jurisdiction of matters arising under the provisions of the Labor-Management Reporting and Disclosure Act which rests exclusively with the Secretary of Labor. The issues involved are whether Frye was engaged in protected concerted activities under the Act and, if so, whether the Respondent violated Section 8(b)(1)(A) of the Act by suspending him from holding office in any affiliat- ed local of the Respondent for 3 years for engaging in such protected concerted activities. Upon the entire record ' in this case, from my observa- tions of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I hereby make the following: FINDINGS OF FACT . THE BUSINESS OF THE EMPLOYER Stran Steel Corporation, division of National Steel Cor- poration (herein referred to as the Company), a Texas cor- poration, with its principal office located at Houston, Tex- as, has a place of business located at Terre Haute, Indiana, where it is engaged in the business of manufacture, sale, and distribution of fabricated steel buildings and related products. During the 12-month period preceding Septem- ber 28, 1977, the Company in the course of its operations manufactured, sold and distributed products valued in ex- cess of $50,000 at its Terre Haute, Indiana, facility, which L Unless otherwise indicated the findings are based upon the pleadings. admissions, stipulations, and undisputed evidence contained in the record. which I credit. 374 UNITED STEELWORKERS OF AMERICA, AFL-CIO were shipped from there directly to States located outside the State of Indiana. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Events Leading up to the Alleged Discrimination Against Frye The Company operates a plant located at Terre Haute, Indiana, where it is engaged in the manufacture, sale, and distribution of fabricated steel buildings and related prod- ucts. Its employees are represented by the local, which is an affiliate of the Respondent and by the Respondent, which has a collective-bargain.ng agreement with the Company covering them. Bernard Frye is employed by the Company. He is also a member of the local and served as its president from 1973 until July i, 1976. In 1970 and 1976 he unsuccessfully ran for this same office. As a result of the 1970 election, Frye lodged a protest with the Respondent. However, an Inter- national commission appointed by the Respondent recom- mended in its report dated October 15, 1970, that the ap- peal be denied for insufficient evidence. Frye also filed a complaint with the Department of Labor under the Labor- Management Reporting and Disclosure Act of 1959 which ultimately resulted in a decision by the United States Su- preme Court in Local 3489, United Steelworkers of America, AFL-CIO et al. v. Usery, Secretary of Labor, 429 U.S. 305 (1977), which held that the meeting attendance qualifica- tion rule for running for union office was unreasonable under the Labor-Management Reporting and Disclosure Act of 1959.2 Respondent's secretary-treasurer, Walter Burke, by letter dated February 22, 1977, which was sent to representatives of the Respondent and its local unions, expressed dis- agreement with the court's decision but stated that they had no alternative but to comply and that the meeting at- tendance requirement in article VII, section 9(c), of the International constitution could no longer be applied in elections for union office and grievance committeemen. Frye unsuccessfully ran for president of the Central La- bor Council 3 in November 1975 against incumbent Gene Deblow who was a member of Respondent's Local 7441. During a union meeting of a new local union held in No- vember 1975, William Woodcock, who is a staff represen- tative for the Respondent and services its local unions in the Terre Haute area, commented on the election. Accord- 2 The United States Circuit Court of Appeals for the Seventh Circuit rendered its decision in this case on August 5, 1975. finding the rule to be unreasonable and that the secret ballot requirement under the Labor-Man- agement Reporting and Disclosure Act of 1959 had not been complied with. J. Brennan v. Local 3489, United Steelworkers of America, AFL-CIO. and United Steelworkers of America, AFL-CIO, 520 F.2d 516 (7th Cir 1975). The Central Labor Council is comprised of local unions located in the Wabash Valley area which are affiliated with the AFL-CIO. ing to Patricia Baker, who is an employee of General Housewares Corporation and a union member, Woodcock suggested they vote for Deblow because he was a reputable man and said Frye was a troublemaker who was having problems with Respondent's staff representative, William Noller, and the Company but said it would all cease be- cause Frye would be dismissed at a future date. Baker also stated that Woodcock mentioned that anyone who was reputable would not be running with a fellow who was seen on television and dealing with communists. Staff Representative Woodcock denied mentioning Frye's employment but acknowledged informing the em- ployees, upon being asked his opinion, that he was opposed to Frye. The reasons Woodcock gave them were that Frye was not able to sufficiently conduct the affairs of the local and was not the person to control and run the Central Labor Council. When someone asked about Frye's partici- pation in the International union elections and associated Frye with Sadlowski's team, Woodcock replied that Frye was associating with people rumored to be communist sup- ported. I credit Woodcock rather than Baker. Apart from my observations of the witnesses, her testimony, in part, was elicited through leading questions and were of a conclu- sionary nature. While Baker further alheged that her local union presi- dent, Bob Edwards, replaced her as a delegate to the Cen- tral Labor Council after she had expressed to those persons around her at the meeting that she thought Woodcock's statements about Frye were unjust and that she would vote for Frye, absent as here, any evidence to show the Respon- dent had knowledge of her sentiments or participated in that decision, I do not find that the Respondent was re- sponsible for her removal as a delegate, as the General Counsel contends. Frye also unsuccessfully attempted to obtain the nomi- nation for the office of director of Respondent's District 30 during the nomination period from November 8 through December 10, 1976, against the incumbent Harry Dough- erty, who ran unopposed. Frye, as reflected in his cam- paign literature sent out to the local unions in District 30 in November 22, 1976, was running on the team which in- cluded Ed Sadlowski for president of the Respondent, while Frye's opponent Doughtery was running on the Mc- Bride slate, which was supported by the Respondent's in- cumbent President I. W. Abel. Frye, after being unsuc- cessful in getting nominated, filed a protest on December 12, 1976, with the Respondent's executive board protesting the nominations but subsequently withdrew it. Two officers of the local, Recording Secretary Robert Mix and Vice President Rick Moates, wrote a letter dated August 3, 1975, to Respondent's president, Abel, referring to certain articles of the International constitution and by- laws which they believed were being violated and stated they wished to exercise their rights under the International constitution. President Abel referred the matter to Director Dougherty of Respondent's District 30, who in turn in- formed Abel by letter dated August 13, 1975, that Staff Representative Noller had advised Mix and Moates of their right to file charges, and Dougherty further stated, "I would also point out that these allegations are an apparent 375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD political battle shaping up for next year within this local union." During August 1975, while Frye was off work because of vacation and an eye infection, Respondent's staff represen- tative, Noller, notified the Company by letter that the local's vice president would be acting president and for them to honor any union appointments he made. Frye, who was removed as insurance chairman by Vice President Rick Moates while acting as president, wrote a letter dated August 27, 1975, to Respondent's secretary-treasurer, Burke, complaining about Moates' action and Noller's in- terference with the local's business and requested an inter- pretation of the International constitution. Although the request was subsequently renewed in a letter dated October 5, 1975, no response was received. While Wayne Antrim, who is secretary to the Respondent's executive board and whose duties include interpreting the International consti- tution, denied seeing Frye's letters, Burke did not testify. Staff Representative Noller sent out notices of a meeting to be held on October 15, 1975, for purposes of discussing a consent decree involving Title VII of the Equal Employ- ment Opportunity Act with a Government representative. When Frye, who received a notice of the meeting from an employee of the Company, showed up for the meeting with other employees he had asked to attend for the local, Nol- ler stated it was his meeting and objected to their presence. Frye testified that Noller told him not to get the men fired. Noller acknowledged remarking to Frye not to lead the men, whom Frye had taken off their jobs to attend the meeting, down a primrose path. On November 26, 1975, Frye filed a charge, which he subsequently withdrew, with the National Labor Relations Board in Case 25-CB-2473 against Respondent's District 30 and William Noller, alleging that they violated Section 8(b)(l)(A) of the Act by causing his discharge and making it impossible for him to receive a fair and just hearing on his discharge.4 That same day Frye sent Respondent's di- rector, Dougherty, of District 30 a letter objecting to-Staff Representative Noller representing him concerning his dis- charge, whereupon he was furnished another representa- tive. Dougherty, who received the letter, acknowledged that he was aware of the animosity between Noller and Frye at the time. A dispute also arose in December 1975 between Frye and Staff Representative Noller about whether Frye, who at the time had been discharged by the Company, would be allowed to attend third-step grievance procedures. Un- der a 1974 agreement between the Respondent and the Company, the local president attended grievances at the third step of the written grievance. The Company's posi- tion as set forth in a letter to Staff Representative Noller was that since an officer had to be a working employee it did not recognize Frye. According to Noller, his position was that, while Frye should be recognized by the Compa- n), until he was recognized the vice president should take The General Counsel offered the evidence of the filing of the charge only for the limited purpose of establishing animus. and the amended com- plaint did not allege that this was a protected concerted activity for which Frye was allegedly disciplined. Frye's place because grievances were piling up. On Decem- ber 12, 1975, Frye, in a letter to Respondent's president, Abel, asked for an official disposition of the Company's letter to Noller. Abel referred the letter to Dougherty, who subsequently informed Frye that Noller had been asked to discuss with the Company Frye's participation at the third step. James Miller, an employee of the Company and a mem- ber of the local, testified in February 1976, following a meeting held by the Department of Labor to go over re- quirements for an upcoming election, that Staff Represen- tative Noller stated in the presence of Donald Kerns, who is subdirector for Respondent's District 30, the Depart- ment of Labor representative, and himself that Frye was no damn good and was associated with communists. Noller also showed them an article about Frye which appeared in the January 26, 1976, issue of the Workers' Power Newspa- per, entitled "We Need The Right To Strike." Noller did not deny that such incident occurred. On March 17, 1976, Frye complained in a letter to subdi- rector Kerns about Staff Representative Noller's action at a union meeting held on March 9 at which he ruled Noller out of order and told him if he did not stop, he would ask him to leave. B. The Alleged Discrimination Against Frye On November 27, 1975, James Sivertson, a member of the local, filed a charge with the local alleging that Frye "coerced, slandered and willful wronged me both verbally and in transcript." A trial committee selected by the local found there was no substantial evidence to support the charge and the local approved their findings. On December 19, 1975, Sivertson filed another charge against Frye and six other officers alleging that they will- fully wronged him. However, on March 15, 1976, the local's vice president, Moates, in a letter addressed to members of the local's trial committee concluded the alle- gations were covered under article XII, section l(g), of the International constitution and could not be lawfully en- forced 5 and advised the trial committee not to hear the charge and relieved them of thier duties. Silverston appealed the Local's action. About November 18, 1976, Silverston, pursuant to the request of the International commission 6 appointed to hear the appeal, discussed infra, to make his charges more specific responded by letter, a copy of which was received by Frye, alleging that he was threatened and removed as a member of the local for working as a temporary foreman. On December 6, 1975, Morey Swanders, a member of the local, filed a charge with the local against Frye and four other local officers for willfully wronging a union I Respondent's executive board adopted a resolution on February II, 1976. stating tthat discipline could not be imposed on grounds stated in art. Xl.I sec. I(e) and (g), of the International constitution. These sections are as follows: (e) publishing or circulating among the membership false reports or misrepresentations, and (g) slandering or willfully wronging a member of the International Union. 6The International commission, which had been requested by Frye to make the charge more specific, had informed Sivertson it had jurisdiction over coercion but would not hear charges of slander and willfully wronging him. 376 UNITED STEELWORKERS OF AMERICA, AFL-CIO brother and violating his seniority rights by retaining Don King from layoff by preferential seniority. A trial commit- tee selected by the local found the accused not guilty, and their findings were approved by the local on March 9, 1976. Swanders appealed the local's action. On August 2, 1976, Robert Mix, who is a member of the local and its recording secretary, filed charges 7 with the Respondent 8 against Frye and six other members of the local. These charges related to payments received for lost time9 and for meals which they had charged to the Re- spondent. 10 On November 16 and December 15, 1976. an Interna- tional commission 1i comprised of Harry Mayfield as chairman and members Robert Johns and Joseph Coyle, who were appointed by Respondent's president, Abel, heard the appeals in the Sivertson and Swanders cases along with the charges in the Mix case. 2 The International commission in its report recom- mended that the appeals of Sivertson and Swanders be granted and the decisiohi of the local be set aside but found that the Mix charges should have been brought under arti- cle XIII of the International constitution." The report con- cluded that Frye in the Sivertson and Swander cases inten- tionally and for personal reasons denied members' nghts guaranteed under the collective-bargaining agreement and the International constitution, which conduct was devisive 7While the charges were filed on stationery containing the letterhead of Respondent's District 30 and the name of Staff Representative Noller, and were written up by Noller's secretary for Mix and brought to Mix to sign by Noller. I credit the testimony of Mix,. who acknowledged that Noller had furnished him certain information as requestel. that these charges which he signed were his own charges. Moreover, as discussed. supra, Mix had previ- ously inquired of the Respondent about filing charges and Staff Represenla- live Noller had informed him of his right The local was under an administratorship at the lime. 9 The local reimburses its members for wages ihe) lose in order to attend certain approved union business. 10On November 19. 1976. Frye, and two other members against whom Mix had filed the charges each filed civil suits against Mix In Vigor Superior Court alleging that the charges were false and defamatory and seeking $50,000 actual damages and $100,000 punitive damages. The Respondent and the local. through their attorney. moved to intervene on the basis that they had an inherent interest in any course of action wherein the subject matter would attempt in an) way to preclude the use of Respondent's pro- cedures provided for in their International constitution Subdirector Kerns of Disinct 30 testified that he requested the attornes to file an appearance because the filing of the charge under the constitution is a right of the membership and an internal process of exercising complaints. While this was the only record of intervention in ciit proceedings bh the Respondent or the local on such matters. there was no esidence that other suits have been filed by members regarding union matters of this nature. i Under the Respondent's procedures an International commission is aIp- pointed to investigate and hear charges appealed from the local and to make recommendations to the Respondent's executive hoard appeal panel shich then go to the executive board from which decisions can he appealed to Ihe International convention. -Based upon the undisputed testimonies of Chairman Mayfield and Wayne Antrim. who serves as secretary to Ihe Respondent's executive board, which I credit, International commlssions have on prior iccaltion, consisted of three members. Further, while it is standard procedure Io notitf, the parties in advance about who will serve (In the International ct mmis- sion, and Frye was onli notified that Masfield and Johns would he mem- hers of the International commission. I credit Mas field's explanation that it was an oversight for not including ('i)le's name 0 This section sets forth the procedures for the trials of members and the Local's officers. and detrimental to the Union. It recommended that Frye be suspended from holding local union office for a period of 3 years and that the additional defendants in the Swan- ders and Sivertson cases be reprimanded and advised their conduct violated their responsibilities under the Interna- tional constitution. Chairman Mayfield testified that Frye was suspended from holding office as opposed to reprimands recom- mended for the other defendants because the members of the International commission felt Frye was running a one- man local union, and the others involved were only follow- ing his lead in supporting him. The Respondent's executive appeal panel heard Frye's case on April 21, 1977, and adopted the International commission's report and recommendations. It further found that the findings of guilty on the Mix charges were a separate independent basis for imposing discipline. In this respect, it was noted that the local was under an adminis- tratorship at the time and these charges had been referred to the International commission for a hearing and tihe ac- cused had presented their case. The executive board, on May 3, 1977, approved the action of the executive appeal panel. On May 7, 1977, Frye filed an appeal to the Interna- tional convention, scheduled to be held in September 1978. Frye, who was not holding union office at the time the report issued, acknowledged that the penalty imposed did not affect his employment at the Company. The International commission, with regard to the Sivert- son appeal, found that Frye acted improperly toward Si- vertson by attempting to intimidate and coerce him into accepting Frye's interpretation of the temporary foreman agreement with a purpose to deliberately injure Sivertson, thereby violating certain sections of the International constitution. The contract provision in question, appendix K, item IV, provides, in pertinent part, as follows: An employee in the Bargaining Unit may work as a Temporary Turn Foreman for a period not to exceed ninety (90) days in any consective [sic] twelve (12) month period. Frye, who interpreted this provision to mean 90 calendar days 4 rather than 90 workdays, as contended by the Com- pany, acknowledged he informed Sivertson, who was work- ing as a temporary foreman, that his time was up at the end of 90 calendar days and he would have to decide whether to stay in the bargaining unit or go with the Company permanently. On November 13, 1975, Frye gave the Company a letter, which was also posted, and a copy given to Sivertson stat- ing that if Sivertson. whose status as a temporary foreman began on August 12. 1975, continued working beyond No- vember 14, i975, as a temporary foreman, he would no longer be considered as part of the bargaining unit. 14 While Mark Irtel. who is emplosed bh the Respondent as a member of the a.rbitration department. took the same position in a brief filed with an arhitrator on behalf of the local while representing Frye in a disciplinars suspension hb the ( ompany. frtel stated he prepared his case based upon his discusslons with Fre and denied ha;ing ;ini discussions with the Inter- nation;ll comnmissioln or the Respondent t nder the circumstances. I do not find. as the (ieneral ( Counsel contends. that the Respondent's position was ninclnsistent 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frye and the other accused officers signed a letter dated December 3, 1975, stating that Sivertson was not a member of the local. According to Chairman Mayfield, no local president has the authority to determine when a person is not a member of the union. With respect to the Swanders' appeal, the International commission concluded that the accused acted in an arbi- trary and capricious manner, and at Frye's instigation they deliberately misused the rights of the Local under the pref- erential seniority clause of the collective-bargaining agree- ment, and the decision to designate Don King to be re- tained was not approved by a majority of the local's executive board or properly approved by the local's mem- bership. Article VI, section 10, of the collective-bargaining agree- ment, which provides for preferential seniority for not more than five union officers and grievance committeemen during a reduction of the work force, further provides: "The employees to whom preferential seniority will apply will be designated to the Company in writing by the Union." The local sent a letter to the Company signed by Frye and the other four accused, including Don King, 5 which was read to the local membership but not voted upon, ad- vising the Company that the local desired to retain King at work under article VI, section 10. The retention of King resulted in Swanders, who had more seniority than King, being bumped. Frye testified that he wanted King retained, so that he himself would know what was going on in the local, and denied knowledge of any requirement or procedure for se- lecting employees for preferential seniority. While Frye ac- knowledged he did not seek the approval of the local's executive board and explained that he only got the other 4 members besides himself of the 10 member executive board to sign the letter because he had been discharged at the time and the Company would not recognize him, he contended that even if their vote was needed he could note twice to break the tie, and therefore he would have a ma- jority of the executive board." James Miller, another witness for the General Counsel, testified, contrary to the testimony of Frye, that there was a procedure for selecting those employees to be retained, which was for the officers and the grievance committee to select them. According to Chairman Mayfield, since the selection of those persons for preferential seniority went to the collec- tive-bargaining agreement, it needed the approval of the membership. Mayfield also denied that there was any au- thority for the president of the local to vote twice. The local's minutes of a meeting held February 6, 1974, reflect that a vote of the membership was taken approving two other local officers, Frank Hensley and Bill Fourger- 15 King, who holds the position of trustee of the local, is considered to be a union officer. 16 Frye, contrary to his testimony at the hearing in the instant case. had sent a letter to Chairman Mayfield dated November 6. 1976. indicating that the local's executive board by a majority vote had authorized King's reten- tion, and the International commission's report shows that Frye told him he got an additional vote and had broken the tie vote. eusse to be retained under preferential seniority. Robert Mix, who is the local's recording secretary, also credibly testified that Frye told them they needed the membership's approval in that case so they could notify the Company to retain Hensley and Fourgereusse. Frye notified the Compa- ny by letter dated February 5, 1974, which was also signed by Mix, of their selections of Hensley and Fourgereusse. The International commission, with respect to the Mix charges, concluded that Frye and the other accused im- properly received payments from the local for May 4 and 5, 1976, because they had not been advised by the Interna- tional commission that a hearing had been scheduled for those dates and made no attempt at that time to determine whether a hearing had been scheduled; found that Frye and the others improperly charged meals on May 5, 1976, to the Respondent and Staff Representative Noller, which amounted to deliberate violations of their responsibilities toward the local; and found that Frye received lost-time payments and expenses from the local under false pretens- es by accepting money from the local and failing to per- form his responsibilities to the membership in connection with a 1976 safety and health conference held by Respon- dent's District 30. The International commission also found that the accused did not deliberately and with mal- ice refuse to pay lost time to Mix and other persons for the original hearing date scheduled on March 30, 1976. On March 30, 1976, which was the original hearing date scheduled by the International commission to hear the ap- peal on the Sivertson case, Staff Representative Noller no- tified Frye and the other accused present that the hearing date had been postponed and gave them a note setting the resumption date as May 4, 1976. However, Noller testified upon informing them of the new date, which he said was tentative subject to Frye's approval, that Frye informed him he was not going to come and take up a lot of time and waste money, which statement he subsequently repeated on other occasions. On March 31, 1976, Noller notified the International commission by letter concerning what Frye had stated, and a few days later he canceled the May 4 reservation he had made at the Howard Johnson Motel. Noller did not officially notify Frye of the cancellation. Frye acknowledged on March 30 that he told Noller he objected to the May 4 meeting and stated that someone in the group told Noller that person was not going to the May 4 meeting. While Frye first stated he did not recall inform- ing Noller he would not attend the May 4 meeting, upon being called as a rebuttal witness he specifically denied making such statement. James Miller, another witness presented by the General Counsel, first denied that anyone told Noller they were not going to come to the May 4 meeting, but under cross-ex- amination, he acknowledged that some of them, including himself, but not Frye, had told Noller they would not know whether they would be able to be at the May 4 meeting because they did not know what was up. I credit the testimony of Noller, who I find was a more credible witness than Frye and Miller. Besides my observa- tions of the witnesses, both Miller and Frye on occasions contradicted their own testimony. On May 4, 1976, Frye, who acknowledged that he usual- ly got a letter notifying him about an International com- 378 UNITED STEELWORKERS OF AMERICA, AFL-CIO mission hearing and denied he had ever received only a verbal notice previously, testified, he and the other accused went to the Howard Johnson Motel. After waiting without anyone showing up, they checked with the motel clerk, who informed them that their records, which had an erased date, showed that the meeting was scheduled for May 5. Frye and the others returned on May 5. but again no one showed up. Frye, who was paid for lost time by the local for both May 4 and 5, acknowledged that no one had checked to see why the meeting was not held. His explana- tion was that he did not know where to contact the mem- bers of the International commission, and Noller had pre- viously said he did not have any authority over scheduling the meeting. Sue Salmon, an official of the Howard Johnson Motel, produced records showing that a room was reserved by Noller for May 5, which Noller denied, and was not can- celed.'7 However, the room was first billed to the local, but for some reason unknown to Salmon it was then billed to the Respondent and Staff Representative Noller's atten- tion. Although the bill was subsequently paid on June 9, Salmon did not know who paid it and Noller denied pay- ing for it. On May 5, 1976, while Frye and the other accused were at the Howard Johnson Motel, they charged their lunches. Frye and James Miller testified that a lady at the motel pursuant to the request informed them they could charge their meals, which amounted to a total of $20.51, to the room, which they did. Frye stated that he asked the motel to mail the bill to his home. However, the motel records reflect that the meals were charged to the Respondent and Staff Representative Noller, and the bill was sent to Noller's office. Both Frye and Miller denied any knowl- edge about how Noller's name was put on the restaurant charges. According to Sue Salmon, Noller, who had not authorized anyone to charge the meals, subsequently ques- tioned her about why the motel had allowed individuals to make charges in the dining room. Frye paid $4 toward the bill on August 2, 1976, but did not pay the bill in full until December 21, 1976, which was after the International com- mission hearing was held. Frye, along with another member of the local, Larry Lynch, went to the 1976 safety and health conference held by Respondent's District 30 at the Rough River State Park, Kentucky, which was scheduled from June 17 through 19, 1976, as representatives of the local. Although the confer- ence was scheduled over a 3-day period, Frye acknowl- edged that the only portion of the conference he attended was part of the workshop held the morning of June 18 and also admitted that, for the remainder of that day, he went to Nashville, Tennessee, on personal business. Frye's ex- planation for not attending the conference the first day was that it was due to a mixup in room reservations and stated that on the last day he and Lynch returned after Lunch had received an emergency call the previous night that his daughter was in the hospital. Another reason Frye gave was that he was given the "cold shoulder" by other persons 7 Salmon, who did not have a reservation for the Respondent on May 4. acknowledged that it was possible a mistake could have been made in book- ing the room for May 5 instead of May 4. attending the conference. Frye received payment for lost time from the local for both June 17 and 18 ' and expenses for the trip. C. Analvsis and ConcIasions The General Counsel asserts that the Respondent vio- lated Section 8(b)(l)(A) of the Act by causing internal union charges to be filed against Frye and having him brought to trial before the local 19 19 and by the actions of its International commission, its executive board appeal panel, and its executive board in finding Frye guilty of the intraunion charges and suspending him from holding office in any affiliated local of the Respondent for 3 years be- cause he engaged in protected concerted activities under the Act and under the Labor-Management Reporting and Disclosure Act, including running for union office and supporting various candidates in their campaigns for union office in opposition to the incumbent union officials, per- forming the duties and responsibilities of an officer of the local by warning other union members of their potential loss of employment status under the contract, pursuing procedures under the Labor-Management Reporting and Disclosure Act to challenge certain of Respondent's con- duct and constitutional provisions, and because the Re- spondent believed Frye had done or would do so. The Re- spondent, however, denies having violated the Act and further asserts that the Board has no jurisdiction over mat- ters arising under the provisions of the Labor-Management Reporting and Disclosure Act. Section 8(bXIXA) of the Act prohibits a union from re- straining or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act.20 However, a proviso provides that this paragraph "shall not impair the right of a labor organization to prescribe its own rules with respect to acquisition or retention of membership therein." The Board in its decision in International Alliance of The- atrical Stage Employees (RKO General, Inc., WOR-TV Divi- sion), 223 NLRB 959 (1976), in which it cited the Supreme Court's decisions in Scofield and Allis-Chalmers.21 inter- preted this section as follows: 1s Payment for lost time had not been authorized for Saturday. June 19, since Frie did not work on Saturday 19 The allegation that the Respondent caused internal charges to be brought against Frye and had him brought to trial before the local, which was alleged to have occurred In the amended complaint about July 29. 1976. is more than 6 months before the filing of charge on May 27, 1977, and is therefore barred by Sec lOh) of the Act. However, it is well settled such events may be considered to shed light on the true character of those mat- ters occurring within the limitation period Local Lodge No 1424. Interna rional Association of Machinists. AFL CIO [Bryan Manufacturing Co.] v. N 1. R B. 362 U.S. 411 (1960), and Tool and Die Makers Lodge No 113, International 4ssoiartion of Machinists and Aerospace Workers, AFL CIO (Md4diesit iAmerican Dental Dioision of American Hospital Supply Corpora ion., 207 NLRB 795. 796 (1973} Sec. 7 of the Act provides "Employees have the right to self-organiza- tion. to form. join, or assist labor organuations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the nght to refrain from any or all such activities except to the extent that such right may be affected by an agree- ment requiring membership In a labor organization as a condition of em- ploqyment as authorized In Section 8(ai(3)" Scofield [/Iisconsin Moror Corp.] v N LR B., 394 U.S. 423. 429 (1969).: and N.L.R B v. A4lis-Chalmers Mainufacturiny ( a, 388 11 S 175 195 ( 1967) 379 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is now well established that the application of Section 8(b)(1)(A) to t.e enforcement of union rules requires a dual approach. External enforcement of a union rule by attempting to affect a member's employ- ment status is proscribed by Section 8(b)( I )(A); on the other hand, since Congress did not propose to inter- fere with internal affairs, a union rule ordinarily is enforceable against a member by internal means-i.e., expulsion or fine-without running afoul of the sec- tion. A union's right to employ internal sanctions, how- ever, is subject to a basic exception: . . .if the [union] rule invades or frustrates an over- riding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violat- ing §8(bX(1). The protection afforded employee-members under Sec- tion 8(b)(1XA) of the Act from internal union discipline extends to their right to run for union office and to assert their rights under the Labor-Management Reporting and Disclosure Act. Carpenters Local Union No. 22, United Brotherhood of Carpenters and Joiners of America, AFL- CIO (William Graziano, d/b/a Graziano Construction Com- pany, 195 NLRB 1 (1972). It also protects them from inter- nal union discipline for exercising their rights under collec- tive-bargaining agreements covering them. International Sound Technicians Local 695 (Twentieth Century Fox and Charles Fries Production), 234 NLRB 811 (1978). The findings supra established that Frye brought charges under the Labor-Management Reporting and Disclosure Act, which ultimately resulted in certain provisions of the Respondent's constitution being held invalid. He also un- successfully ran for office in Respondent's District 30 against an incumbent supported by Respondent's presi- dent, Abel, and for office in the Central Labor Council against an incumbent supported by the Respondent's staff representative, Woodcock. In addition to these activities, Frye also became involved in disputes with Staff Represen- tative Noller concerning rights under the collective-bar- gaining agreement, such as who would represent the Local in the third step of the grievance procedure. Applying the principles enumerated, supra, I find that Frye, by bringing charges under the Labor-Management Reporting and Disclosure Act, running for union office, and asserting rights under the collective-bargaining agree- ment, was engaged in protected concerted activities under the Act. Further, the evidence shows that hostility and animus existed between Frye and certain of the Respondent's rep- resentatives. For example, Staff Representative Woodcock told members at a union meeting Frye was associating with people rumored to be communist supported, and Staff Representative Noller told two members Frye was no damn good and was associated with communists. Besides the dispute between Frye and Staff Representative Noller over who would represent the local in grievances, they also had disputes over such matters as the right of the vice pres- ident to act in Frye's absence and over who would repre- sent the local in discussions about a consent decree issued by the court. Frye, in addition to filing the charge under the Labor-Management Reporting and Disclosure Act, also filed a charge with the National Labor Relations Board against Respondent's District 30 and Staff Repre- sentative Noller and further complained to Respondent's secretary-treasurer, Burke, about Noller interfering with the local's business and to Respondent's Subdirector, Kerns, of District 30 about Noller's conduct at a union meeting. Having found that Frye was engaged in protected con- certed activities under the Act and the existence of hostility and animus between Frye and the Respondent, the remain- ing issue to be resolved is whether Frye was suspended by the Respondent from holding office in any affiliated local of the Respondent for 3 years because of his protected concerted activities under the Act, as alleged. The General Counsel, in support of his argument that Frye's suspension was discriminatorily motivated, asserts that procedural errors occurred in processing the appeals, that the charges had no merit, and that the penalty im- posed upon Frye shows disparate treatment. The alleged procedural errors that this was the first time more than two members had served on an International commission and that Frye was not notified that Joseph Coyle would be a member of the International commission were disproved by the credited testimonies of Chairman Mayfield and Wayne Antrim that on prior occasions three members had served on International commissions and Mayfield's explanation that the failure to notify Frye of Coyle's selection was an oversight. Moreover, neither of these alleged procedural issues appears to have been raised by Frye during the appeal procedure itself. Insofar as the charges themselves are concerned, they were filed not by the Respondent but by members of Frye's own Local and were processed in accordance with the established appeals procedure. Contrary to the General Counsel's position that there was no merit to the charges, the record contains more than ample evidence to support the findings and recommendations of the International commission and the actions of Respondent's executive board appeal panel and the executive board. For instance, Frye, who did not have the authority, notified Sivertson that he was no longer a member of the local after Sivert- son, who was working as a temporary foreman, had re- fused Frye's demand that he not work longer than 90 cal- endar days on the job, although the provisions of the collective-bargaining agreement relied upon by Frye were not clear on this point and were disputed by the Compa- ny.22 With respect to the Swanders case, Frye awarded preferential seniority to Trustee King, causing Swanders, who had more seniority, to be bumped notwithstanding that the action had not been approved by the local's execu- tive board or by the local's membership, as in the only previous case where preferential seniority had been award- ed. Insofar as the Mix case is concerned, Frye was paid by the local for lost time for May 4 and 5 and June 17 and 18, 1976, as well as expenses for the latter two dates, although, 22 I reject the General Counsel's contention that Frye in his actions to- ward Sivertson was engaged in a protected concerted activity under the Act. 380 UNITED STEELWORKERS OF AMERICA, AFL-CIO with the exception of a few hours on the morning of June 18, Frye performed no union business entitling him to such payment and, as reflected by the motel record, charged his lunch on May 5, 1976, to the Respondent and Staff Representative Noller without authorization. While the penalty imposed upon Frye appears harsh when compared to the reprimands given to the other ac- cused, Chairman Mayfield's explanation that it was based upon the feelings of the members of the International com- mission that Frye was running a one-man local and the other accused were only following his lead appears both reasonable and consistent with the evidence and does not establish disparate treatment toward Frye.23 Under the foregoing circumstances and for the reasons indicated, which establish a valid basis for the action taken against Frye that originated within his own local, and ab- sent, as here, any evidence otherwise sufficient to show that the Respondent's action was undertaken for discriminatory 23 Both the General Counsel and the Respondent proffered evidence of other internal union disciplinary proceedings for consideration in determin- ing whether the penalty imposed upon Frye was discriminator). Upon re- viewing those disciplinary proceedings, I do not find them persuasive It should be noted. however, that in one case relied upon bh the General Counsel two grievancemen, who had been found not guilty by their Iccal. were found guilty by the Respondent on appeal for making claims for lost time which were not authorized, resulting in their immediate removal from office, were required to make full restitution, and were suspended from holding any office in the Respondent for 5 years, although on appeal to the International convention the suspension period was reduced to 2-1 2 years reasons, I am persuaded and find that the General Counsel has failed to prove by a preponderance of the evidence as is his burden, that the Respondent violated Section 8(b)(1)(A) of the Act by discriminating against Frye be- cause of his concerted protected activities. as alleged in the amended complaint. CONCLUSIONS OF LAW I. Stran Steel Corporation, Division of National Steel Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a la- bor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate Section 8(b)(l)(A) of the Act by discriminating against Bernard Frye as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 24 It is hereby ordered that the amended complaint herein be, and it hereby is, dismissed in its entirety. '4 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions. and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes 381